Bradshaw v. Gordon

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

_______________________________________

JAY BRADSHAW,

Plaintiff,

9:21-CV-0645

v. (GTS/ML)

M. GORDON; RONDO; MATTIAS; McCARTTER;

J. SCOTT; and ORBEGOZO,

Defendants.

_______________________________________

APPEARANCES:

HARRIS BEACH, PLLC DANIEL R. LeCOURS, ESQ

Counsel for Plaintiff ELLIOT A. HALLAK, ESQ.

677 Broadway, Suite 1101

Albany, NY 12207

HON. LETITIA JAMES DAVID C. WHITE, ESQ.

Attorney General for the State of New York Ass't Attorney General

Attorney for Defendants

The Capitol

Albany, NY 12224

GLENN T. SUDDABY, Chief United States District Judge

DECISION AND ORDER

I. INTRODUCTION

On or about May 31, 2021, Plaintiff Jay Bradshaw commenced this action pro se by

filing a civil rights complaint against numerous state employees of Upstate Correctional

Facility pursuant to 42 U.S.C. § 1983 ("Section 1983"), together with an application to

proceed in forma pauperis ("IFP"), and a motion for preliminary injunctive relief. Dkt. No. 1

("Compl."); Dkt. No. 4 ("IFP Application"); Dkt. No. 2 ("Preliminary Injunction Motion"). By

Decision and Order entered on July 23, 2021, this Court granted plaintiff's IFP Application in

accordance with 28 U.S.C. § 1915(g) ("Section 1915(g)"), and, following review of the

complaint pursuant to 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b), dismissed some

of plaintiff's claims (and terminated some of the defendants), and directed service and a

response for the claims against the named defendants that survived sua sponte review, as

well as the Preliminary Injunction Motion. Dkt. No. 7 ("July 2021 Order").1

Thereafter, on September 12, 2021, plaintiff filed an amended complaint;2 and counsel

for the defendants filed an opposition to the Preliminary Injunction Motion and cross-motion

to revoke plaintiff's IFP status, which plaintiff subsequently opposed. Dkt. No. 15 ("Am.

Compl."); Dkt. No. 16 ("Opposition to Preliminary Injunction Motion and Cross-Motion to

Revoke Plaintiff's IFP Status"); Dkt. No. 21 ("Response to Cross-Motion to Revoke IFP

Status"). By Order entered on November 4, 2021, the Court determined that an evidentiary

1 Roughly two weeks before the July 2021 Order, plaintiff commenced a new action in this District.

Bradshaw v. Uhler, No. 21-CV-0776 (N.D.N.Y. filed July 8, 2021) ("Bradshaw v. Uhler"). Initially, that new action

was assigned to United States District Judge David N. Hurd and United States Magistrate Judge Therese Wiley

Dancks. However, by Order entered on July 27, 2021, that new action was reassigned to the undersigned and

United States Magistrate Judge Miroslav Lovric based on a determination that it is related to this action under the

District’s General Order 12. Bradshaw v. Uhler, Dkt. No. 5.

2 It is not entirely clear when the complaint in this case was effectively served, or whether, pursuant to

Fed. R. Civ. P. 15(a), plaintiff was required to seek leave of the Court before filing his amended complaint on

September 12, 2021. Compare Morris v. New York State Gaming Comm'n, 18-CV-0384, 2019 WL 2423716, at

*4 (W.D.N.Y. March 14, 2019) ("Because Plaintiff never served the original Complaint, the 21-day time limit to file

an amended complaint under Rule 15(a)(1)(A) never commenced.") (emphasis added) with Henderson v. Wells

Fargo Bank, NA, 13-CV-0378, 2015 WL 630438, at *2 (D. Conn. Feb. 13, 2015) ("Fed. R. Civ. P. 15(a) provides

that a 'party may amend its pleading once as a matter of course within . . . 21 days after serving it.' Because

Plaintiff has not yet served Defendant with the complaint, her motion is granted although unnecessary because

leave of the Court is not required."); see also Ramos v. Poore, 15-CV-518, 2017 WL 1362017, at *2 (D. Conn.

Apr. 11, 2017) ("The case law interpreting the[ ] two sections of Rule 15(a)(1) is unsettled as to whether a plaintiff

may amend a complaint as of right more than twenty-one days after service of the complaint under Rule

15(a)(1)(B) when the defendants fail to file a responsive pleading or Rule 12 motion." (collecting cases)). In any

event, even the most liberal constructions of plaintiff's amended complaint does not yield factual allegations

plausibly suggesting an imminent danger of serious physical injury at the time of the filing of this action (on May

31, 2021) that are substantively different from those alleged in his original complaint. (Compare Dkt. No. 1 with

Dkt. No. 15.) For this reason, when summarizing his allegations and claims below in Part II.A. of this Decision

and Order, the Court does not treat the factual allegations of plaintiff's amended complaint as substantively

different from those of his original complaint.

2

hearing on defendants' cross-motion to revoke plaintiff's IFP status was necessary to decide

certain issues raised (and/or not addressed) by the parties in their submissions. Dkt. No. 23.

At the time of the Court's ruling, a cross-motion to revoke plaintiff's IFP status was also

pending in Bradshaw v. Uhler. Bradshaw v. Uhler, Dkt. No. 22. As a result, the Court also

issued an Order in that case on November 4, 2021, scheduling an evidentiary hearing,

consolidated with the evidentiary hearing in this case. Id., Dkt. No. 25.

Following these Orders, counsel was appointed for, and appeared on behalf of,

plaintiff. Dkt. Nos. 25, 26, 27; see also Bradshaw v. Uhler, Dkt. Nos. 29, 30, 31. On

December 15, 2021, the Court held the consolidated evidentiary hearing.

Currently before the Court are the following: (1) plaintiff's Preliminary Injunction

Motion; and (2) defendants' Cross-Motion to Revoke Plaintiff's IFP Status.

II. BACKGROUND

A. Overview of the Complaint

Generally speaking, plaintiff's complaint alleges that various corrections officials from

Upstate Correctional Facility denied him nine out of ten meals over a three-and-a-half-day

period between May 28 and May 31, 2021, in retaliation for him filing a grievance against

certain of these officials on May 20, 2021. Compl. at 1-3. The complaint further alleges that

plaintiff "suffers from a pre-existing stomach condition" for which he has been "instructed by

medical staff to eat [unleavened] bread with the prescribed medication to help reduce pains

and the symptoms[,]" and has experienced "severe aggravated and unusual stomach pains,

headaches, physical weakness, [and] mental pain and suffering as a result of being deprived

food." Id. at 2. Finally, the complaint vaguely alleges that defendant Corrections Officer

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Gordon "implied that plaintiff will eat at the officers discretion[,]" and that all of the named

defendants "intend to continue to deprive plaintiff [of] meals in complete disregard for the

substantial risk of harm to [his] health." Id.

B. Initial Determination of Imminent Danger

Prior to commencing this action, plaintiff had filed at least nineteen other civil actions

in the district courts in the Second Circuit since 2008. July 2021 Order at 3. In at least four

of those actions, plaintiff acquired "strikes" as defined in 28 U.S.C. § 1915(g) ("Section

1915(g)").3 Id. at 4 n.5. Notwithstanding this determination, plaintiff's IFP Application was

granted because the Court found that the allegations in the complaint were sufficient, albeit

barely, to plausibly suggest that [plaintiff] was 'under imminent danger of serious physical

injury' when he signed his complaint on May 31, 2021." Id. at 6. The Court, however, noted

that "this is a preliminary finding which defendants are entitled to challenge or refute in future

filings." Id. (stating further that "plaintiff's IFP status will be revoked if, as the case

progresses, it is determined that he did not face 'imminent danger' when he commenced this

action or is otherwise not entitled to proceed IFP").

C. Overview of Defendants' Opposition and Cross-Motion, and Plaintiff's

Response

Defendants argue that plaintiff's Preliminary Injunction Motion should be denied

because he has failed to establish that he will suffer irreparable harm in the absence of the

3 The actions in which plaintiff acquired strikes are as follows: (1) Bradshaw v. McQueen, No.

08-CV-5518, Dkt. No. 32 (S.D.N.Y. Feb. 11, 2010) (dismissing complaint for failure to state a claim upon which

relief may be granted); (2) Bradshaw v. Brown, No. 13-CV-4308, Dkt. No. 52 (E.D.N.Y. May 18, 2017) (Mandate

dismissing appeal of dismissal order on grounds that it lacked "an arguable basis either in law or in fact"); (3)

Bradshaw v. The City of New York, No. 15-CV-2166, Dkt. No. 58 (E.D.N.Y. Aug. 22, 2017) (dismissing complaint

for failure to state a claim upon which relief may be granted); (4) Bradshaw v. The City of New York, No.

15-CV-2166, Dkt. No. 62 (E.D.N.Y. Nov. 16. 2018) (Mandate dismissing appeal on grounds that it lacked "an

arguable basis either in law or in fact").

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preliminary injunctive relief that he seeks. Dkt. No. 16 at 7-8. In support of this argument,

defendants have adduced record evidence showing that (1) plaintiff has never been denied

meals at any point, (2) plaintiff was moved from cell 48 in C gallery to cell 18 in A gallery on

June 11, 2021, (3) plaintiff has accepted all but two meals since August 23, 2021, and (4)

plaintiff's medical records do not contain any indication that his health is at risk due to missed

meals. Dkt. No. 16-2; Dkt. No. 16-3; Dkt. No. 16-4; Dkt. No. 16-5; Dkt. No. 16-6; Dkt. No. 16-

7; Dkt. No. 17.

Defendants separately argue that plaintiff's IFP status should be revoked because he

did not face imminent danger when he filed the complaint. Dkt. No. 16 at 8-9. In support of

this position, defendants have adduced record evidence, including sworn statements, cell

block log books, the New York State Department of Corrections and Community Supervision

("DOCCS") Directive on Inmate Hunger Strikes, and plaintiff's medical records, which show,

among other things, that (1) plaintiff was offered meals between May 28 and May 31, 2021,

which he refused, and (2) plaintiff received lunch and dinner meals on May 31, 2021. Dkt.

No. 16-2; Dkt. No. 16-3; Dkt. No. 16-4; Dkt. No. 16-5; Dkt. No. 16-6; Dkt. No. 16-7; Dkt. No.

17.

In his response to defendants' cross-motion to revoke his IFP status, plaintiff has

submitted a sworn statement wherein he attempts to refute certain factual information

contained in defendants' documentary evidence, including the evidence showing that he

refused meals between May 28 and May 31, 2021. Dkt. No. 21. Plaintiff also submitted

certain exhibits with his response. Dkt. No. 21-1; Dkt. No. 22. In addition, plaintiff's

complaint is verified. Compl. at 3.

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D. Evidentiary Hearing

The Court held an evidentiary hearing on defendants’ motion to revoke plaintiff’s IFP

status on December 15, 2021. (Text Minute Entry filed Dec. 15, 2021.) At the hearing, the

following four witnesses testified (and were cross-examined): (1) plaintiff; (2) Corrections

Officer Michael Phillips; (3) Corrections Sergeant Eric Marshall; and (4) Nurse Brenda

Holcombe. (Id.; Dkt. Nos. 37, 39.) In addition, the following eight exhibits were marked for

identification: (1) Exhibit P-3 (Upstate Correctional Facility’s SHU Incarcerated Individual

Orientation Manual); (2) Exhibit P-4 (Declaration of Michael Phillips, dated October 6, 2021,

and exhibits thereto); (3) Exhibit P-5 (Log Books for May 28-31, 2021, and July 1-5, 2021,

Bates Stamped 000034-68); (4) Exhibit P-9 (Plaintiff’s Supplemental Complaint, Case No.

21-CV-0776, dated September 18, 2021, and exhibits thereto); (5) Exhibit D-1 (Plaintiff’s

ambulatory health record); (6) Exhibit D-2 (Upstate Correctional Facility Cell Block 10

Logbooks); (7) Exhibit D-6 (Plaintiff’s Complaint, Case No. 21-CV-0776); and (8) Exhibit D-9

(Plaintiff’s Complaint, Case No. 21-CV-0645. (Text Minute Entry filed Dec. 15, 2021; Dkt.

Nos. 41-42.) The hearing lasted approximately two-and-a-half hours. (Text Minute Entry filed

Dec. 15, 2021.)

III. RELEVANT LEGAL STANDARDS

A. Motions for Injunctive Relief

Preliminary injunctive relief "'is an extraordinary and drastic remedy, one that should

not be granted unless the movant, by a clear showing, carries the burden of persuasion.'"

Moore v. Consolidated Edison Co. of New York, Inc., 409 F.3d 506, 510 (2d Cir. 2005)

(quoting Mazurek v. Armstrong, 520 U.S. 968, 972 (1997)). The standard a court must utilize

6

in considering whether to grant a request for injunctive relief is well-settled in this Circuit.

Citigroup Global Mkts., Inc. v. VCG Special Opportunities Master Fund Ltd., 598 F.3d 30, 35,

38 (2d Cir. 2010). To prevail on a motion for preliminary injunctive relief, a plaintiff must

demonstrate irreparable harm and either a substantial likelihood of success on the merits of

the claim, or sufficiently serious questions going to the merits and a balance of hardships

tipping decidedly in his favor. Id. at 35; Cacchillo v. Insmed, Inc., 638 F.3d 401, 405-06 (2d

Cir. 2011). However, when the moving party seeks a mandatory injunction that alters the

status quo by commanding a positive act, the burden is "even higher." Cacchillo, 638 F.3d at

405-06; Jolly v. Coughlin, 76 F.3d 468, 473 (2d Cir. 1996). Thus, a mandatory preliminary

injunction "should issue only upon a clear showing that the moving party is entitled to the

relief requested, or where extreme or very serious damage will result from a denial of

preliminary relief." Citigroup Global Markets, 598 F.3d at 35 n.4 (internal quotation marks

omitted).

"'A showing of irreparable harm is the single most important prerequisite for the

issuance of a preliminary injunction.'" Faiveley Transport Malmo AB v. Wabtec Corp., 559

F.3d 110, 118 (2d Cir. 2009) (quoting Rodriguez v. DeBuono, 175 F.3d 227, 234 (2d Cir.

1999)). Generally an alleged violation of a constitutional right creates a presumption of

irreparable harm. Jolly v. Coughlin, 76 F.3d 468, 482 (2d Cir. 1996). However, speculative,

remote or future injury is not the province of injunctive relief. Los Angeles v. Lyons, 461 U.S.

95, 111-12 (1983). Rather, a plaintiff seeking to satisfy the irreparable harm requirement

must demonstrate that "absent a preliminary injunction [he or she] will suffer an injury that is

neither remote nor speculative, but actual and imminent, and one that cannot be remedied if

7

a court waits until the end of trial to resolve the harm." Bisnews AFE (Thailand), 437 Fed.

App'x at 58 (quoting Faiveley, 559 F.3d at 118); Garcia v. Arevalo, No. 93-CV-8147, 1994

WL 383238, at *2 (S.D.N.Y. June 27, 1994) ("It is well settled that an allegation of the mere

possibility of irreparable harm is insufficient to justify the drastic remedy of preliminary

injunction. . . . A party who seeks the extraordinary remedy of a preliminary injunction must

show the alleged irreparable harm to be imminent, not remote or speculative, and the alleged

injury to constitute one that is incapable of being fully remedied by monetary damages."

(citations omitted)). A finding of irreparable harm cannot be based solely on past conduct.

Haden v. Hellinger, No. 9:14-CV-0318, 2016 WL 589703, at *1 (N.D.N.Y. Feb. 11, 2016).

The district court has wide discretion in determining whether to grant preliminary

injunctive relief. Moore v. Consol. Edison Co. of New York, Inc., 409 F.3d 506, 511 (2d Cir.

2005). "In the prison context, a request for injunctive relief must always be viewed with great

caution so as not to immerse the federal judiciary in the management of state prisons."

Fisher v. Goord, 981 F. Supp. 140, 167 (W.D.N.Y. 1997) (citing Farmer v. Brennan, 511 U.S.

825, 846-47 (1994)) (other citations omitted).

B. The "Three Strikes" Rule and Imminent Danger Exception

Where a plaintiff seeks leave to proceed IFP, the Court must determine whether the

plaintiff has demonstrated sufficient economic need to proceed without prepaying, in full, the

Court's filing fee of four hundred and two dollars ($402.00).4 The Court must also determine

4 "28 U.S.C. § 1915 permits an indigent litigant to commence an action in a federal court without

prepayment of the filing fee that would ordinarily be charged." Cash v. Bernstein, No. 09-CV-1922, 2010 WL

5185047, at *1 (S.D.N.Y. Oct. 26, 2010). "Although an indigent, incarcerated individual need not prepay the filing

fee . . . at the time of filing, he must subsequently pay the fee, to the extent he is able to do so, through periodic

withdrawals from his inmate accounts." Id. (citing 28 U.S.C. § 1915(b); Harris v. City of New York, 607 F.3d 18,

21 (2d Cir. 2010)).

8

whether the "three strikes" provision of Section 1915(g) bars the plaintiff from proceeding IFP

and without prepayment of the filing fee.5 More specifically, Section 1915(g) provides as

follows:

In no event shall a prisoner bring a civil action or appeal a judgment

in a civil action or proceeding under this section if the prisoner has,

on 3 or more prior occasions, while incarcerated or detained in any

facility, brought an action or appeal in a court of the United States

that was dismissed on the grounds that it is frivolous, malicious, or

fails to state a claim upon which relief may be granted, unless the

prisoner is under imminent danger of serious physical injury.

28 U.S.C. § 1915(g).

The "imminent danger" exception protects a prison inmate exposed to potential

"serious physical injury" from the consequences of his earlier mistakes in filing frivolous

litigation. Congress enacted the imminent danger exception contained in the final phrase of

§ 1915(g) as a "safety valve" to prevent impending harms to prisoners otherwise barred from

proceeding in forma pauperis. Malik v. McGinnis, 293 F.3d 559, 563 (2d Cir. 2002). "[F]or a

prisoner to qualify for the imminent danger exception, the danger must be present when he

files his complaint–in other words, a three-strikes litigant is not excepted from the filing fee if

he alleges a danger that has dissipated by the time a complaint is filed." Pettus v.

Morgenthau, 554 F.3d 293, 296 (2d Cir. 2009) (citation omitted); see also Polanco v.

Hopkins, 510 F.3d 152 (2d Cir. 2007) (imminent danger claims must be evaluated at the time

the complaint is filed, rather than at the time of the events alleged). In addition, "§ 1915(g)

allows a three-strikes litigant to proceed [in forma pauperis] only when there exists an

5 The manifest intent of Congress in enacting Section 1915(g) was to curb prison inmate abuses and to

deter the filing of multiple, frivolous civil rights suits by prison inmates. Tafari v. Hues, 473 F.3d 440, 443-44 (2d

Cir. 2007). The question of whether a prior dismissal is a "strike" is a matter of statutory interpretation and, as

such, is a question for the court to determine as a matter of law. Tafari, 473 F.3d at 442-43.

9

adequate nexus between the claims he seeks to pursue and the imminent danger he

alleges." Pettus, 554 F.3d at 296. In deciding whether such a nexus exists, the Second

Circuit instructs the courts to consider "(1) whether the imminent danger of serious physical

injury that a three-strikes litigant alleges is fairly traceable to unlawful conduct asserted in the

complaint, and (2) whether a favorable judicial outcome would redress that injury." Id. at

298-99. Both requirements must be met in order for the three-strikes litigant to proceed in

forma pauperis. Id.

Generally speaking, the allegations relevant to the imminent danger inquiry "are those

in which [plaintiff] describes physical injury, threats of violence, and deprivation of medical

treatment." Chavis v. Chappius, 618 F.3d 162, 165 (2d Cir. 2010). Although the Second

Circuit has cautioned against "an overly detailed inquiry into whether the allegations qualify

for the exception," id. at 169-70 (quoting Andrews v. Cervantes, 493 F.3d 1047, 1055 (9th

Cir. 2007)), when a defendant challenges a prisoner's claim of imminent danger, a district

court may "reexamine" its provisional determination of imminent danger and "conduct a

narrow evidentiary inquiry into the prisoner-litigant's fear of imminent danger" at the time of

filing. Shepherd v. Annucci, 921 F.3d 89, 94-95 (2d Cir. 2019). If the evidentiary

submissions show the plaintiff's explanation for why he was in imminent danger to be

"ridiculous," "conclusory," or "without foundation[,]" the district court may revoke the plaintiff's

previously granted IFP status. Id. at 95, 97; see also Chavis, 618 F.3d at 170 ("A court may

find that a complaint does not satisfy the 'imminent danger' exception if the complainant's

'claims of imminent danger are conclusory or ridiculous.'") (quoting Ciarpaglini v. Saini, 352

F.3d 328, 331 (7th Cir. 2003)); Nelson v. Nesmith, No. 9:06-CV-1177 (TJM/DEP), 2008 WL

10

3836387, at *5 (N.D.N.Y. Aug. 13, 2008) ("The imminent danger claimed by the inmate . . .

must be real, and not merely speculative or hypothetical."); accord, Welch v. Selsky, No.

9:06-CV-0812 (LEK/DEP), 2008 WL 238553, at *5 (N.D.N.Y. Jan 28, 2008); Gamble v.

Maynard, No. 9:06-CV-1543 (DNH/DEP), 2008 WL 150364, at *4 (N.D.N.Y. Jan. 14, 2008).

IV. ANALYSIS

A. Plaintiff's Preliminary Injunction Motion

As noted in the July 2021 Order, plaintiff seeks a preliminary injunction directing

defendants to "provide [him] meals and . . . cease from all forms of retaliation against [him]."

July 2021 Order at 19.

Upon review, the Court finds that plaintiff has failed to meet the heavy burden for a

mandatory injunction.

As an initial matter, plaintiff admits that he was provided with lunch and dinner meals

on the day he signed his complaint, Dkt. No. 21, ¶ 78, and the past allegations of misconduct

stated in plaintiff's complaint, standing alone, are insufficient to support a finding of

irreparable harm. Haden, 2016 WL 589703, at *1. Moreover, defendants have introduced

record evidence showing that plaintiff missed only two meals between August 23 and

September 2, 2021, which plaintiff does not refute. Dkt. No. 16-7 at 40-82; Dkt. No. 21, ¶¶

67-71. In fact, by plaintiff's own account, during the six-week period between August 24 and

October 5, 2021, when plaintiff submitted his response for filing, he missed a total of only

four meals, and that was because on each of these four occasions he refused the meal after

it was delivered to him on an "unwrapped" tray. Dkt. No. 21, ¶¶ 66-71. Furthermore,

plaintiff's medical records, which cover a time period through August 20, 2021, are devoid of

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any evidence showing that plaintiff suffered any significant adverse health effects from

missed meals. Dkt. No. 17.

Simply put, plaintiff has not made a sufficient showing that he will suffer an injury that

is neither remote nor speculative should his request for injunctive relief be denied.

Accordingly, plaintiff's Preliminary Injunction Motion is denied.6

B. Defendants' Cross-Motion to Revoke Plaintiff's IFP Status

The Court initially found that the allegations in the complaint were sufficient to

plausibly suggest that plaintiff was under imminent danger of physical injury when he signed

his complaint on May 31, 2021. In reaching this determination, the Court highlighted three

key allegations. First, the complaint alleged that plaintiff "suffers from a pre-existing stomach

condition" and has been "instructed by medical staff to eat [unleavened] bread with [his]

prescribed medication to help reduce pains and the symptoms[.]" July 2021 Order at 5

(citing Compl. at 2). Second, the complaint alleged that plaintiff has experienced "severe

aggravated and unusual stomach pains, headaches, physical weakness, [and] mental pain

and suffering as a result of being deprived food." Id. at 5-6 (citing Compl. at 2). Third, the

complaint alleged that defendant Gordon "implied that plaintiff will eat at the officers

discretion[,]" and that all of the named defendants "intend[ed] to continue to deprive plaintiff

[of] meals in complete disregard for the substantial risk of harm to [his] health." Id. Taken

together, these allegations plausibly suggested that (1) plaintiff faced a unique risk of serious

6 In reaching this determination, the Court is mindful that plaintiff has filed several letters since

responding to defendants' cross-motion wherein he repeatedly complains of meal deprivations and tampering.

Dkt. Nos. 47, 48, 49, 55, 57, 59, 60. These unsworn submissions (and unauthenticated exhibits), however,

cannot be considered record evidence in support of the requested relief, nor do they make it “more or less

probable” (for purposes of Fed. R. Evid. 401) that plaintiff suffered a deprivation of meals at the time of the filing

of this action (the relevant time period).

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physical harm if he missed multiple consecutive meals, based on his stomach condition and

need to take his prescribed medication with food, (2) this unique risk had not dissipated at

the time the complaint was filed, and (3) a potential existed for plaintiff to experience a

prolonged denial of meals.

As discussed more fully below, the record now before the Court makes clear that (1)

plaintiff did not face a unique risk of serious physical harm from missing multiple consecutive

meals, (2) there was no effort to cover up plaintiff's missed meals, (3) plaintiff had access to

medical treatment during the relevant time period, which he never sought, (4) plaintiff was

never at risk of missing more than two additional meals without receiving mandatory medical

treatment, and (5) the alleged harm had dissipated by the time plaintiff submitted his

complaint for filing. In other words, plaintiff did not face an imminent danger of serious

physical injury at the time he submitted his complaint for filing.

1. Imminent Danger

As noted, "for a prisoner to qualify for the imminent danger exception, the danger must

be present when he files his complaint–in other words, a three-strikes litigant is not excepted

from the filing fee if he alleges a danger that has dissipated by the time a complaint is filed."

Pettus v. Morgenthau, 554 F.3d 293, 296 (2d Cir. 2009) (emphasis added); see also Polanco

v. Hopkins, 510 F.3d 152 (2d Cir. 2007) (finding that imminent danger claims must be

evaluated at the time the complaint is filed, rather than at the time of the events alleged).

"Under the 'prison mailbox rule,' the date of filing is deemed to be the date that the

prisoner–plaintiff delivered his complaint to a prison guard for mailing." Chavis v. McCulloch,

No. 9:20-CV-0435 (DNH/CFH), 2020 WL 5051571, at *1 (N.D.N.Y. Aug. 27, 2020).

13

Ordinarily, the date of delivery to a prison guard is presumed to be the date that the

complaint was signed. Id. (citing Houston v. Lack, 487 U.S. 266, 276 (1988)).

In the July 2021 Order, the Court assumed that plaintiff's complaint was filed on the

same date that it was signed, and at a time when plaintiff remained at risk of continued

physical harm due to not being fed. This assumption was based on plaintiff's express

allegations that he had been denied seven consecutive meals as a means of punishment for

filing a prior grievance, and feared that defendants "intend[ed] to continue to deprive [him]

[of] meals in complete disregard for the substantial risk of harm to [his] health." Compl. at 2.

It is now clear from the evidence before this Court–including evidence submitted by

plaintiff–that plaintiff's complaint was provided to a corrections official for filing on the

morning of June 1, 2021. See Dkt. No. 21, ¶ 14 (stating that mail was collected from plaintiff

on May 28, 2021, at approximately 6:00 a.m., "prior to breakfast"); Dkt. No. 21, ¶ 31 (stating

that mail was collected from plaintiff on June 1, 2021, at approximately 6:00 a.m., "prior to

breakfast"); Dkt. No. 21 at 17 (stating that "prior to breakfast" on each day between May 28

and May 31, 2021, "the defendants would open the . . . hatch [to plaintiff's cell] to collect [his]

mails and . . . provide [his] supplies"). By this time, plaintiff was aware that he had received

lunch and dinner meals the previous day. However, plaintiff nevertheless submitted a

misleading sworn complaint to the Court suggesting that he remained at risk of harm. See

Compl. at 2, ¶¶ 17-19 (emphasis added).7

While such allegations present Rule 11 issues, more importantly for purposes of

7 Perhaps realizing this timing issue, plaintiff testified during the evidentiary hearing that he submitted

his complaint for filing on May 31, 2021. Hrg. T. Of course, this testimony is wholly inconsistent with plaintiff's

own motion papers. See Dkt. No. 21 at 17.

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defendants' motion to revoke, there can be no doubt that plaintiff did not face an imminent

risk of serious physical harm due to a continuous deprivation of food over a four-day period

when he submitted his complaint to a corrections officer (and thus "filed" it with the Court) on

the morning of June 1, 2021. Instead, plaintiff experienced only past harm, which had

dissipated by the time he delivered his complaint for filing.8

Insofar as plaintiff seeks to base his "imminent danger" claim on allegations that

corrections officials "collided with" him in an effort to provoke him or cause him harm, the

result is no different. However, plaintiff is also respectfully advised that being repeatedly

bumped or even "collided with" in the hallway by one or more corrections officers, while

unprofessional (and conceivably sufficient to give rise to an Eighth Amendment claim,

depending on the frequency, duration and severity of the alleged conduct, and the existence

of exacerbating factual allegations), does not constitute being "under imminent danger of

serious physical injury" under 28 U.S.C. § 1915(g). Cf. Canady v. Roesler, 668 F. App'x 642

(5th Cir. 2016) ("His allegations that . . . an officer pushed him in the chest and insulted him

on one occasion almost two years before the filing of the civil rights complaint, and that a

disciplinary officer yelled at him and threatened him two months prior to the filing of the

complaint are insufficient to establish that he was in imminent danger of serious physical

injury at the relevant times . . . .").

8 In finding that plaintiff’s hearing testimony on this issue lacking in credibility, the Court generally relies

on the following: (1) plaintiff’s unconvincing mannerisms and body language (including, but not limited to, his

demeanor, tone of voice, facial expressions, and eye contact or lack thereof) during the relevant portions of his

testimony; (2) the inconsistency if not contradiction between plaintiff’s testimony that he was provided with only

breakfast on May 31, 2021, and would "continue to [be] deprive[d] [of] meals" after breakfast on May 31, 2021,

and the evidence that (a) plaintiff refused seven consecutive meals either expressly or through his non-compliant

behavior between May 28 and May 31, 2021, and (b) plaintiff received lunch and dinner meals on May 31, 2021;

and (3) the fact that defendants adduced documentary evidence (e.g., Exhibit D-2) and/or witness testimony

(e.g., the testimony of Corrections Officer Michael Phillips, and/or Corrections Sergeant Eric Marshall) that

credibly undermined the relevant portions of plaintiff's hearing testimony.

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For this reason alone, plaintiff's IFP status must be, and is, revoked.9

2. Serious Physical Injury

As noted, a three strikes prisoner must show that he faced "an imminent danger of

serious physical injury" at the time he submitted his complaint for filing in order to proceed

IFP. 42 U.S.C. § 1915(g). Although the term "serious physical injury" is not expressly

defined in Section 1915(g), several courts have made clear that something more than

temporary discomfort associated with a limited number of missed meals is necessary to

satisfy the requirement. See, e.g., Daker v. Bryson, 784 Fed. App'x 690, 693 (11th Cir. Aug.

8, 2019) (per curiam) (finding that a plaintiff alleging denial of nutritionally adequate food and

weight loss did not establish imminent danger); Sims v. Caruso, No. 11-CV-92, 2011 WL

672232, at *2 (W.D. Mich. Feb. 18, 2011) ("The fact that Plaintiff has lost some weight,

standing alone, falls short or establishing serious physical injury"); Hernandez v. Ventura

County, No. 09-CV-7838, 2010 WL 3603491 (C.D. Cal. July 27, 2010) (finding that a claim

that food practices at jail caused inmate to lose a significant amount of weight was

insufficient to demonstrate "serious physical injury" under § 1915(g) where the inmate did not

allege that such practices caused or threaten to cause him to go hungry, to suffer

malnutrition, or to suffer any negative health consequences), report and recommendation

adopted by 2010 WL 3603485 (C.D. Cal. Sept. 6, 2010); Sayre v. Waid, No. 08-CV-142,

2009 WL 249982, at *2 (N.D. W.V. Feb. 2, 2009) ("[W]eight loss, in and of itself, is not

indicative of a serious physical injury...."); Mateo v. Vosbrink, No. 06-CV-115, 2006 WL

9 As discussed below, there is also no credible evidence in the record showing that at the time of filing

plaintiff continued to suffer from injuries based on the aforementioned past harm, for which he sought and was

refused treatment.

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2038499, at *2 (N.D. Fla. July 18, 2006) ("The fact that Plaintiff is constantly hungry and

suffers hunger pangs does not constitute a serious physical injury...."); cf. Jackson v. Marks,

722 Fed. App'x 106, 107 (2d Cir. 2018) (concluding that inmate-plaintiff's allegations of

"missing approximately half of his weekly meals" over a period of approximately one year,

which "caused him to suffer weight loss, stress, and hunger[,]" were sufficient to "meet the

exception to the three-strikes rule because the allegations of deprivations of food were

prolonged and substantial" (emphasis added)); Taylor v. Walker, No. 07-CV-706, 2007 WL

4365718, at *2 (S.D. Ill. Dec. 11, 2007) ("Because Plaintiff may not create the 'imminent

danger' required by § 1915(g) by commencing a hunger strike and because there is no

indication that Plaintiff's hunger strike causes 'serious physical injury'-due to the timely

intervention of prison officials and Plaintiff's voluntary cessation of said strikes-Plaintiff has

not satisfied the requirements of § 1915(g) so as to proceed in forma pauperis in this

action.").

In support of their cross-motion, defendants have adduced record evidence showing

the following: (1) plaintiff refused each of the meals that he did not receive between May 28

and the morning of May 31, 2021; (2) nurses made rounds in plaintiff's cell block area

between May 28 and May 31, 2021; (3) plaintiff received lunch and dinner meals on May 31,

2021; and (4) DOCCS requires that any inmate who misses nine consecutive undergo a

medical evaluation. Dkt. No. 16-2; Dkt. No. 16-3; Dkt. No. 16-4; Dkt. No. 16-5; Dkt. No. 16-6;

Dkt. No. 16-7; Dkt. No. 17.

In response, plaintiff attempts to refute some of these facts, and minimize the

significance of others. For example, plaintiff states that the named defendants falsely

recorded in the log books that he refused meals when in actuality these officials refused to

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provide those meals to him. Dkt. No. 21, ¶¶ 14-28. Plaintiff also states that, although nurses

made rounds through his cell block area, he and the other inmates were prevented by

unidentified "officers" from communicating with medical staff between May 28 and June 3,

2021. Id., ¶¶ 27-28, 31-34, 74. In addition, plaintiff states that he was denied several meals

after May 31, 2021, and told by a nurse on June 4, 2021, that he could no longer receive his

stomach medication because it was not meant for long-term use. Id. at 13, ¶ 76.

Insofar as plaintiff claims that he did not refuse the meals that he was denied,

defendants Gibson, Matthie, McCarger, Orbegozo, Rondo, and Scott have each provided

sworn statements that they never denied plaintiff a meal between May 28 and May 31, 2021,

that he wished to accept. Dkt. Nos. 16-2, 16-3, 16-4, 16-5, 16-6, 16-7. In addition to

testifying that these statements are not true, plaintiff provided the Court with video footage of

the exterior of his cell on June 6 (Dkt. No. 53, Exhibit A), July 3 (Dkt. No. 53, Exhibits D, E),

and July 7, 2021 (Dkt. No. 53, Exhibit G), which are dates plaintiff testified that he did not

receive meals. Hrg. T.10 The recordings from June 6 and July 7 clearly show that corrections

officials offered plaintiff his meals, which he refused; and one of the recordings from July 3

shows that plaintiff was asked to turn on the light in his cell, and was denied a meal after

refusing to do so. See Dkt. No. 53, Exhibit D.11 In light of these recordings, as well as the

other issues with plaintiff's testimony discussed above, the Court finds that the sworn

statements from the defendants indicating that meals were offered to plaintiff between May

10 The Court is mindful that the video footage from July 7, 2021, is not relevant to either this action or

Bradshaw v. Uhler, which was filed on July 4, 2021. The Court is also mindful that plaintiff was provided with

forty-three (43) video recordings showing activity outside of his cell on different dates, see Dkt. No. 46, yet chose

to provide the Court with only a limited number of these recordings.

11 It was undoubtedly known to corrections officials that their activity outside of the cell block area was

being recorded.

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28 and May 31, 2021, are more credible than plaintiff's testimony that he was intentionally

deprived of seven consecutive meals during this time.

In any event, the Court declines to accept plaintiff's statement that he and all other

inmates in his cell block area were entirely prevented from communicating with medical staff

between May 28 and May 31, 2021, for at least three reasons.

First, the complaint is devoid of any allegations which plausibly suggest that plaintiff

did not have access to medical treatment, or an ability to communicate with medical staff,

between May 28 and May 31, 2021. Rather, plaintiff's statement was made for the first time

in response to defendants' cross-motion to revoke his IFP status.

Second, the log book entries expressly state that nurses made rounds, and

communicated with certain inmates about medical issues, between May 28 and May 31,

2021. Dkt. No. 16-7 at 11-26 (noting morning and evening "med run[s]" and "nurse on

rounds"); Dkt. No. 16-7 at 15 (noting inmate request for emergency medical treatment at

10:32 p.m. and nurse on the block at 10:37 p.m.). It strains credulity to believe that

corrections officers would have inconsistently prevented nurses from speaking to inmates

during rounds, and then falsely logged successful medication "runs" and the receipt of an

inmate medical complaint.

Third, the ambulatory health records submitted by defendants show that plaintiff

consulted nurses regarding Omperazole, his prescribed stomach medication, on June 3 and

June 4, 2021. Dkt. No. 17 at 13. It is difficult for the Court to believe that nurses would have

been prevented from speaking to inmates during rounds made between May 28 and June 3,

2021, which coincidentally overlaps with a period that plaintiff was allegedly deprived of

meals, and yet suddenly been allowed to speak with at least plaintiff regarding his stomach

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medication on June 3 and June 4, 2021.12

In light of the foregoing, even assuming that plaintiff was denied meals that he wished

to receive between May 28 and May 31, 2021,13 the Court has no reasonable basis to

conclude from the complaint and record evidence adduced by the parties that he was unable

to communicate any adverse health effects associated with missed meals to medical staff.

Moreover, Nurse Brenda Holcombe, who worked at Upstate Correctional Facility during the

relevant time period, testified that, if an inmate advises a nurse that he is in danger, the

nurse is required to report the inmate's concern "up the chain[.]" Hrg. T. Nurse Holcombe

further testified that, if an inmate expresses concern for their safety to a nurse, or advises a

nurse that he is not eating or being fed, the matter is documented in the inmate's medical

records. Id. Thus, according to Nurse Holcombe (whose testimony the Court finds credible),

had plaintiff expressed concerns for his health or safety, or complained about not being fed,

the issue would have been documented and addressed.

Plaintiff's decision not to express concerns to medical staff regarding his health is

therefore telling as to his state of mind at the time, as is his medical file, which shows that he

refused his prescribed stomach medication on June 4, 2021–after it was ordered for him the

12 In one of his post-hearing submissions, plaintiff also attached a copy of a sick call slip that is dated

June 2, 2021, wherein he complains about stomach pain. Dkt. No. 47. The document is further proof that

plaintiff had access to sick call during the relevant time period.

13 The Court notes that plaintiff has persistently argued that proof exists that he was denied meals

between May 28 and May 31, 2021, in the form of proof that he was denied meals at times after those dates.

However, generally, subsequent conduct is of little if any relevance (under Fed. R. Evid. 401) in proving prior

conduct. See Fed. R. Evid. 404(a)(1) ("Evidence of a person's character or character trait is not admissible to

prove that on a particular occasion the person acted in accordance with the character or trait."); Fed. R. Evid.

404(b)(1) ("Evidence of any other crime, wrong, or act is not admissible to prove a person's character in order to

show that on a particular occasion the person acted in accordance with the character.."); cf. Fed. R. Evid. 407

(treating subsequent remedial measures as not admissible to prove culpable conduct). Furthermore, as

discussed below, at least with respect to the video recordings provided by plaintiff of events after May 31, 2021,

the Court does not agree with plaintiff's interpretation.

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previous day–based on his belief that the medication was "not helping[.]" Dkt. No. 17 at 13.14

These facts make clear that plaintiff (1) did not need food to take his prescribed medication

and/or did not need his prescribed medication to alleviate a serious stomach condition when

he missed meals between May 28 and May 31, 2021, (2) did not believe that his missed

meals presented a condition of urgency worthy of reporting to medical staff, and (3) had not

suffered any serious adverse health consequences as a result of the meals he missed. In

other words, it is now clear to the Court that, at the time of filing, plaintiff did not face a

unique risk of serious physical harm based on the meals that he had missed, or the potential

that he may miss a few more, regardless of the reason.

Moreover, the DOCCS Directive on Inmate Hunger Strikes indicates that an inmate

who voluntarily refuses to eat nine consecutive meals is deemed to be "on a hunger strike."

Dkt. No. 16-3 at 30. The Directive further indicates that an inmate on a hunger strike is

"referred to Health Services and to the [Office of Mental Health] staff for counseling and

14 Plaintiff states that the nurse's recording in his medical file is incorrect, and that it was the nurse who

actually refused to provide him with his prescribed medication. Dkt. No. 21, ¶ 76. The Court declines to accept

the truth of this statement for several reasons. First, the ambulatory health record from June 3, 2021, shows that

a refill of plaintiff's prescription for Omperazole was ordered on this date. Dkt. No. 17 at 13. Thus, plaintiff's

statement requires this Court to accept the allegation that the nurse who met with him on June 4, 2021, refused

to provide him with Omperazole, despite knowing that it had been ordered for him the previous day by a different

medical provider, and then falsely noted that the medication was refused by plaintiff. While this is certainly a

difficult proposition to accept, if the statement were true, it is inconceivable to the Court that plaintiff would not

have filed a grievance regarding the denial, or at least requested the medication on a subsequent day (assuming

he believed that he had a medical need for it). Yet there is no evidence in the record before this Court that either

of these things occurred. Furthermore, the recording of plaintiff's belief that his medication was "not helping" is

consistent with his allegations made in a different complaint filed after this action was commenced. More

specifically, in plaintiff's pursuit of claims unrelated to the claims asserted in this action, he swears (in a verified

complaint) that he engaged (apparently voluntarily) in a hunger strike over a period of five days in July of 2020 at

Mid-State Correctional Facility. Bradshaw v. Annucci, No. 21-CV-901, Dkt. No. 1 at 13, ¶ 115 (N.D.N.Y. Aug. 11,

2021). During this time, by his own admission, he had been prescribed the same medication that he claims

needed to be taken with food to "reduce pains and the symptoms." Compl., ¶ 17; Dkt. No. 21 at 13, ¶ 73. The

Court notes that this hunger strike undermines plaintiff’s allegation that, when he filed his complaint in this action

less than a year later, he suffered from a pre-existing stomach condition that required him to take medication

with food.

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clinical assessment to determine the cause of the inmate's refusal to eat." Id. at 31.15

Because defendants logged plaintiff's missed meals, he was never at risk of missing

more than two additional meals before receiving mandatory medical treatment. Thus, it is

also now clear to the Court that this is not a case of a potential cover up of meal deprivations

that could have continued for a prolonged period of time, as the allegations in the complaint

suggest.16

For all of these reasons, based on the record evidence presented by the parties, the

Court finds that, at the time plaintiff filed his complaint (and even at the time he signed it), he

did not face an imminent risk of serious physical injury. As a result, revocation of plaintiff's

IFP status is appropriate. Accordingly, defendants' cross-motion to revoke plaintiff's IFP

status is granted.

V. CONCLUSION

WHEREFORE, it is hereby

15 Nurse Holcombe testified that, at Upstate Correctional Facility, when an inmate misses nine

consecutive meals, he receives "a full assessment", which includes checking vital signs, skin, blood sugar, and

weight, as well as "a mental health referral to try to assess why this is going on." Hrg. T. Nurse Holcombe

further testified that the purpose of the extensive evaluation is "to make sure [the inmate is] not in danger of

being sick from not eating." Id.

16 In finding that plaintiff’s hearing testimony on this issue lacking in credibility, the Court generally relies

on the following: (1) plaintiff's unconvincing mannerisms and body language (including, but not limited to, his

demeanor, tone of voice, facial expressions, and eye contact or lack thereof) during the relevant portions of his

testimony; (2) the inconsistency if not contradiction between plaintiff's testimony that his stomach condition

requires that he take Omeprazole (the generic version of Prilosec) with food and his testimony or sworn

representation that (a) his stomach condition was "never diagnosed," (b) during his missed meals, he did not

submit a sick call request, (c) he currently no longer even takes Omeprazole, and (d) while taking Omeprazole in

July of 2020, he went on (and survived) a "hunger strike"; (3) the inconsistency if not contradiction between

plaintiff's testimony that being deprived of the seven meals in question caused him dangerous weight loss and

his testimony or sworn representation that (a) currently he weighs 151 pounds, more than 20 pounds less than

he weighed during the time in question, and (b) in July of 2020, he went on (and survived) a "hunger strike"; and

(4) the fact that defendants adduced documentary evidence (e.g., Exhibit D-1) and/or witness testimony (i.e., the

testimony of Nurse Brenda Holcombe) that credibly undermined the relevant portions of plaintiff's hearing

testimony.

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ORDERED that plaintiff's Preliminary Injunction Motion (Dkt. No. 2) is DENIED for the

reasons stated above; and it is further

ORDERED that defendants’ Cross-Motion to Revoke plaintiff's IFP status (Dkt. No. 16)

is GRANTED for the reasons stated above; and it is further

ORDERED that plaintiff's IFP status is REVOKED; and it is further

ORDERED that, if plaintiff wishes to proceed with this action, he must pay the Court's

filing fee of four hundred and two dollars ($402.00) in full within THIRTY (30) DAYS of the

date of this Decision and Order; and it is further

ORDERED that, if plaintiff timely pays the filing fee in full, the Clerk of the Court shall

return the file to this Court for review; and it is further

ORDERED that, if plaintiff fails to timely pay the filing fee in full, the Clerk shall enter

judgment DISMISSING this action without prejudice, without further order of this Court; and it

is further

ORDERED that the Clerk serve a copy of this Decision and Order on the parties.

IT IS SO ORDERED.

Dated: February 18, 2022

Syracuse, NY

Chief U.S. District Judg

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